The Supreme Court nomination of Brett M. Kavanaugh stalled late last week when Republican senators pressured the White House to reopen an FBI background check of the nominee before voting. If Kavanaugh’s nomination fails, President Trump and Republicans will have little time to select a new nominee, hold Senate confirmation hearings and vote before the Nov. 6 midterm elections.
Recent history tells us that Republicans probably don’t have enough time to confirm a new nominee before Election Day. However, they still have time to confirm someone during the “lame duck” session — after new senators have been elected but before they take office in early January.
Since 1980, Supreme Court nominees who were eventually confirmed waited an average of 42 days before a hearing, and more than 70 days from nomination to confirmation. The current justices waited, on average, 48 days for a hearing and 72 days overall.
How long current justices waited
Days before a hearing
Additional wait until confirmation
If Republicans keep the Senate in November, they have two extra years to confirm a nominee. And they’re favored to do so thanks to a lucky bit of electoral timing: They’re defending only nine seats to Democrats’ 26 in 2018.
A whopping 10 of those Democrats represent states that voted for Trump in 2016. Seven of those seats are rated “Lean D” or “Toss-up” by the Cook Political Report, and Democrats pretty much need to hold onto all of them, even ones in deep-red states like Montana, West Virginia, North Dakota and Missouri. They also need to pick up at least two Republican seats out of nine up for election. Four of those are rated as toss-ups: Arizona, Nevada, Tennessee and Texas.
So Democrats need a lot of stuff to go their way, but they have a couple paths to victory that don’t involve crazy upsets. This makes them underdogs to win the chamber but not by a huge margin. Forecasters like FiveThirtyEight give them roughly a 2 in 7 chance.
In the doomsday scenario for Republicans, Democrats win the Senate and are able to prevent a lame duck confirmation before they take power. To avoid this, it’s possible that Trump will put forth a more moderate nominee to coax a Senator or two across the aisle.
When Anthony M. Kennedy resigned in June, Trump released a short list of potential nominees, of which Kavanaugh was the most conservative, according to the Judicial Common Space system developed by political science researchers. The scores take into account the voting patterns of Supreme Court justices.
How conservative are Trump’s shortlisted nominees
If Democrats control the chamber in 2019 and the seat is still unfilled, we’re in uncharted territory. The party could try to block the president’s nominations until after the 2020 election. This would be an extreme move, but it could be framed as retribution for Merrick Garland, whom Republicans refused to vote on after Obama nominated him with about 300 days left in his term.
It would be a tall order for Democrats to hold ranks and stonewall for two years. If it comes to that though, the Republican advantage in the Senate in 2018 becomes a weakness. Just one red state Democrat — Doug Jones of Alabama — would be up for reelection in 2020. No one else would be under much pressure to compromise.
Joe Fox contributed to this report.
About this story
Nomination timeline information and hearing start dates from U.S. Senate. Ideological scores were determined using developed by political science researchers Lee Epstein, Andrew D. Martin, Jeffrey A. Segal and Chad Westerland. The scores take into account the voting patterns of Supreme Court justices and a combination of factors for judges of lower courts, including clerkships and the political affiliation of the nominating president.
Promo photo by Matt McClain/Post.